BYC18 v Minister for Home Affairs

[2018] FCCA 3098

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYC18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3098

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal complied with the statutory regime in confirming the decision under review – no jurisdictional error – application dismissed.

Legislation:

Acts Interpretation Act1901 (Cth), s.36

Migration Act 1958 (Cth), ss.412, 494C, 474

Migration Regulations 1994 (Cth), reg.4.31

First Applicant: BYC18

Second Applicant BYD18

Third Applicant BYE18

Fourth Applicant BYF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1078 of 2018

Judgment of: Judge Emmett

Hearing date: 30 October 2018

Date of Last Submission: 30 October 2018

Delivered at: Sydney

Delivered on: 30 October 2018

REPRESENTATION

Applicants: The second applicant represented all applicants with the assistance of an interpreter

Solicitors for the Respondents: Ms Shelley He
(Mills Oakley)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1078 of 2018

BYC18

First Applicant

BYD18
Second Applicant

BYE18
Third Applicant

BYF18
Fourth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 17 April 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”) dated 13 March 2018. 

2. The first-named applicant is the husband of the second applicant and the father of the third and fourth applicants. The second applicant is the wife of the first applicant and the mother of the third and fourth applicants. The third and fourth applicants are the minor children of the first and second applicants.

3. None of the applicants were represented today’s hearing.

4. The first applicant did not appear. The second applicant informed the Court that she was appearing for all of the applicants. The second applicant had the assistance of an interpreter.

5. The second applicant confirmed that she attended the directions hearing before me on 29 May 2018 together with the other applicants. On that occasion, the applicants were given leave to file an Amended Application, giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the AAT hearing, as well as submissions in support. The applicants were also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicants’ own language.   

6. At the commencement of today’s hearing, the second applicant confirmed that the applicants had not filed any Amended Application, evidence or submissions in support of the application and that the applicants had no further documents to present to the Court this morning in support of the applicants’ application

7. The applicants’ background, the decision of a delegate of the first respondent (“the Delegate”) and the AAT's decision are accurately summarised in the submissions of the first respondent as follows:

   “Background and the Applicants' case

   5. The applicants arrived in Australia on Electronic Travel Authority visas on 6 July 2017 and lodged a Protection visa application (PVA) on 29 September 2017 (CB 1-99).

   6. At question 38 of his PVA, the first applicant (the applicant) consented to the Department communicating with him by email and nominated the email address [second applicant’s actual email address redacted] for the purpose of such correspondence (CB 15).

   7. The applicant set out brief written claims in his PVA (at CB 32-34) and claimed he had sought protection in Australia so he did not have to return to Malaysia. He claimed he had previously been arrested by police and was sent to jail for five months because of drug offences. He was thereafter unable to find work to support him and his family because of his criminal record and claimed he moved to Australia to “build a new good life”. He claimed if he returned to Malaysia he and his family would have a poor life and he would be unable to get work because of his criminal record.

   8. The second applicant claimed she chose Australia to follow her husband's decision and because it was the best country for her family to build a new life. She claimed she was pregnant and Australia was the best country for her new baby (CB 53).

   9. The third applicant was born on 14 August 2013 (CB 108) and the fourth applicant was born on 26 June 2016 (CB 111) In the PVA forms lodged on behalf of the third and fourth applicants, it was claimed: “My children just follow their parents” (CB 74, 95). They did not have separate protection claims.

   10. Copies of the applicants' identity documents and passports were provided in support of their PVA (CB 100-113)

   The delegate's decision

   11. On 8 January 2018, the delegate made a decision to refuse the applicants Protection visas. The delegate found the applicant's claimed economic harm was not for one or more of the reasons mentioned in s 5J(1)(a) of the Act and therefore did not constitute persecution or discrimination within the meaning of s 5J(1)(b) of the Act. The delegate was not satisfied the applicant was a refugee as defined in s 5H or met the criterion in s 36(2)(a) of the Act (CB 138). Further, the delegate had regard to country information about the economy and employment in Malaysia and also noted the applicant provided no substantiating evidence in support of his claim to have a criminal record and had answered “No” to all questions in hi PVA about convictions, charges and crimes committed. On the basis of the available information, the delegate was not satisfied that the applicant's claimed financial hardship amounted to significant harm for the purposes of the complementary protection criterion in s 36(2)(aa) of the Act (CB 139-140).

   12. Notification of the delegate's refusal decision was sent to the applicant under the cover of a letter dated 8 January 2018 and dispatched by email to the email address [second applicant’s actual email address redacted], which the applicant had nominated in his PVA (CB 131-134).

   13. The delegate's refusal notification letter was dispatched by email on 8 January 2018. It informed the applicant of his review rights and that he had 28 days from the date he was deemed to have been notified of the delegate's decision to lodge any application for review to the Tribunal (CB 132). Pursuant to s 494C(5) of the Act, the applicant was deemed to have been notified of the delegate's decision on 8 January 2018, being the end of the day on which the document was transmitted.

   The application for review

   14. On 11 February 2018, the applicants made an application to the Tribunal to review the delegate's decision (CB 146-148). The applicants also gave the Tribunal a copy of the delegate's refusal notification letter and decision record with the review application and nominated the same email address [applicant’s actual email address redacted], as part of his correspondence details (CB 148).

   15. On 15 February 2018, the applicants were invited to comment on the validity of the application on the basis that their review application was lodged outside the statutory time period (CB 150-151). The applicants did not respond (CB 155, [4]).

   The Tribunal's decision

   16. On 12 March 2018, the Tribunal made a decision in which it found it had no jurisdiction to review the delegate's decision as the review application was not made within the prescribed period (CB 154-155).

   17. Pursuant to s 412(1)(b) of the Act and reg 4.31 of the Migration Regulations 1994 (Cth) (the Regulations), the Tribunal correctly found that an application for review must be made within 28 days after the applicants were notified of the decision “commencing on that day” (CB 155, [3]). The Tribunal's reference to “that day” is a reference to the day on which the applicants were notified of the delegate's decision (namely, 8 January 2018). This is consistent with the Tribunal's finding (at CB 155, [2]) that the applicants had been notified of the delegate's decision by an email sent to their nominated email address [second applicant’s actual email address redacted] on 8 January 2018.

   18. The Tribunal noted the prescribed period ended on 4 February 2018, which was a Sunday. Pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth), the applicants had until the end of the next day that was not Saturday, Sunday or a holiday to lodge their application for review (namely, 5 February 2018) (CB 155, [3]).

   19. As the applicants had not lodged their review application until 11 February 2018, the Tribunal found it had no jurisdiction to review the delegate's decision (CB 155, [5]-(6]).”

8. The second applicant confirmed she relied on the grounds contained in an Application, filed on 17 April 2018, as follows:

   “1. Just delivered baby

   2. Need to sort out baby documentation and stuff

   3. Still working at my current company.”

9. Each of the grounds was interpreted for the second applicant and the second applicant was invited to make submissions in support of each of the grounds and in support of the application generally. 

10. At the outset of the hearing, I explained to the second applicant that the role of this Court is very different to that of the AAT, and that it is not for this Court to reconsider the applicants’ claims and reach different findings or conclusions. I also explained to the second applicant that the only issue before this Court is whether or not the decision of the AAT was made according to law. I explained to the second applicant that this Court has no power to interfere with the decision of the AAT, unless the Court is satisfied that the decision of the AAT is affected by a mistake going to its jurisdiction. I further explained to the second applicant that disagreement with the findings and conclusions of the AAT rarely, by itself, establishes such a mistake. I also explained to the second applicant that the grounds of the application did not disclose any error capable of review by this Court.  

11. The second applicant declined to make any submissions in support of the application.

12. The steps taken by the AAT make clear that it complied with the statutory regime in confirming the decision under review.

13. The AAT noted that the review application was lodged with the AAT on 11 February 2018, in circumstances where the material before the AAT indicated that the applicants were notified of the Delegate's decision refusing the applicants protection visas by letter, dated 8 January 2018, and despatched by email to the email address nominated in the applicants’ protection visa application for the purposes of receiving correspondence from the Department. 

14. The AAT found that the applicants were taken to have been notified of the Delegate’s decision on 8 January 2018 pursuant to s.494C of the Act. In the circumstances, the AAT found the applicants were notified of the Delegate’s decision in accordance with the statutory requirements.

15. The AAT noted that pursuant to s.412(1)(b) of the Act and reg.4.31(2) of the Migration Regulations 1994 (Cth) (“the Regulations”) the applicants, not being in immigration detention on the day they were notified of the Delegate’s decision, must have filed any application for review within 28 days commencing on the day the applicants were notified of the decision.

16. The AAT also noted that the 28 day period expired on 4 February 2018 and that day was a Sunday. The AAT noted that pursuant to s.36(2) of the Acts Interpretation Act1901 (Cth), the applicants had until the end of the next day which is not a Saturday or Sunday or a holiday to lodge their application for review by the Administrative Appeals Tribunal. In this case, the AAT found that date to be 5 February 2018.

17. The AAT noted that it wrote to the applicants by way of email on 15 February 2018. That email attached a letter addressed to the applicants at the email address identified in the applicants’ protection visa application above. The letter informed the applicant that the application for review did not appear to be a valid application because it was not lodged within the time limit. The letter explained what the relevant times and dates were and invited the applicants to make any comments on whether a valid application had been made by 1 March 2018.

18. No further communication was received from the applicants by the AAT and, accordingly, on 12 March 2018 the AAT made a decision that it did not have jurisdiction. 

19. The email address with which the AAT communicated was the email address provided under the heading Correspondence Details in the applicants’ application for review by the AAT lodged on 11 February 2018. It is the same email address identified by the applicants in their protection visa application lodged on 3 October 2017 in which the first applicant ticked yes to the question, "Do you agree to the Department communicating with you by fax, email or other electronic means?”

20. The bundle of relevant documents identified as Court Book and filed on 12 June 2018 was tendered by the first respondent and marked Exhibit 1R.  Exhibit 1R discloses that the Delegate's decision was emailed to the second applicant on 8 January 2018 to the second applicant's email address.

21. The first respondent read the affidavit of Anthony Gardiner, sworn 9 October 2018, which annexed various screen shots from the Department's Enterprise Correspondence Portal. I accept that the evidence confirms that, the email sent to the applicants notifying them of the Delegate's decision, was indeed emailed, as disclosed in Exhibit 1R.

22. The AAT’s email, attaching a letter, dated 15 February 2018, explained to the applicants why it was that the AAT was of the view that the application was not a valid application and invited the applicants to respond in writing by 1 March 2018. The AAT noted that it received no response to that letter. The AAT did not make its decision until 12 March 2018.

23. In the circumstances, the AAT provided the applicants with a reasonable opportunity to say anything further that they wished on the issue of jurisdiction and in the absence of any response it was open to the AAT to proceed to make its decision on 12 March 2018.

24. The AAT concluded that as the application for review was not received by the AAT until 11 February 2018, the application was not made in accordance with the relevant legislated time provisions and therefore the AAT had no jurisdiction.

25. It is plain on the evidence before the Court, that the AAT's findings were open to it on the evidence of material before it and for the reasons it gave. A fair reading of the AAT’s decision record makes clear that the AAT reached conclusions based on the findings made by it and to which it applied the correct law.

26. In the circumstances, the AAT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

27. The AAT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

28. The proceeding before this Court, commenced by way of application filed on 17 April 2018, should be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 9 November 2018